On the 15th June 2016, the International Court of Justice (ICJ), released a press statement that Iran has started legal proceedings against the U.S. Despite the lifting of sanctions under the JCPOA, the Iran action is another example of the bumpy relationship between Iran and the U.S.
In essence, Iran is challenging the U.S.’s violation of its international obligations regarding the international laws of state immunity.
The vehicle for this action is based on a breach of the Treaty of Amity, Economic Relations, and Consular Rights between Iran and the United States of America which was signed in Tehran on 15 August 1955 and entered into force on 16 June 1957 (Treaty of Amity).
The action is another attempt to address the international legal issue whether unilateral countermeasures can be scrutinized in the context of treaties of FCN (Treaties of Friendship, Commerce, and Navigation). Think of ICJ Nicaragua vs. United States case and ICJ Oil Platforms case (Iran vs. U.S.).
The question is whether the ICJ will be able to rule on this very interesting legal issue. Note that in 1986, the U.S. revoked its compulsory jurisdiction of the ICJ, which may prevent the Court from ruling in this case.
Iran’s action was prompted by the U.S. Supreme Court’s decision in the Bank Markazi v. Peterson case.
Here the Supreme Court ruled that U.S. victims of terrorist attacks, in the eyes of the U.S. sponsored by Iran, could be compensated with blocked assets of Bank Markazi (Iran’s Central Bank).
In this context, the Supreme Court deemed that § 8772 of the Iran Threat Reduction Act (EO 13599) did not violate separation of powers. As result, assets held in the U.S. of Bank Markazi could be used to execute outstanding Iranian terrorism-related judgments in U.S. courts.
Understandably, Iran’s reaction was not good; it claimed that the ruling was a flagrant breach of international law. That foreign sovereigns are immune from the jurisdiction of the courts of another state.
If the case goes forward, it will be interesting to see how the ICJ deals with the complex legal issues. The case has the potential to further illuminate the status of unilateral countermeasures, i.e. national sanctions regimes, under international law. The problem is that based on Iran’s claim, the ICJ, if allowed to proceed, will only be allowed to rule whether the U.S. actions violated the Treaty of Amity. This lastly might reduce the ICJ’s ability to judge the broader implications of U.S. sanctions under international law.
The question is whether the traditional national security clause contained in FCN treaties concluded by the U.S. will be upheld by the ICJ (See article XX.1 (d) Treaty of Amity). In this context, the freedom of commerce and navigation is not unlimited. For example,
- certain goods are exempted – e.g. fissile materials and weapons (items subject to ITAR)
- individual rights are subject to public order exceptions
- obligations for the maintenance of international peace and security (collective security measures by UNSC – see ICJ Nicaragua Case para. 223)
- ‘essential security interests’ of the parties, may justify unilateral countermeasures by all FCN parties otherwise not in conformity with the FCN (see ICJ Nicaragua para. 225; article 21 International Law of State Responsibility precluding the unlawfulness of an internationally wrongful act following a permissible application of the right to self-defense)
Such as in the Treaty of Amity, most FCN treaties concluded by the US allow a dispute settlement procedure before the ICJ.
However, a condition for ICJ jurisdiction, is that the FCN parties first attempt to settle their disputes through diplomacy or through other peaceful means. As to U.S. Courts, these have long recognized that FCN treaties are self-executing, i.e. confer rights on individuals directly applicable in domestic law without implementing legislation – e.g. McKesson HBOC, Inc v Islamic Republic of Iran United States Court of Appeals for the District of Columbia Circuit [16 November 2001] 1107–8.
Therefore, we must await further developments….